BULAWAYO – Deputy Prosecutor General Michael Reza left his station in Harare on Friday to personally take charge of the prosecution of rights lawyer Siphosami Malunga and two business partners who are charged with unlawful occupation of gazetted land before a Tsholotsho court.
Reza, dubbed the “hangman” of human rights and opposition activists over his dogged pursuit of political prosecutions, was driven into the Tsholotsho Magistrates Court with a police escort.
The resident prosecutor, Sharon Phiri, was sidelined as Reza sparred with veteran Bulawayo lawyer Josphat Tshuma.
A lawyer who is familiar with Reza’s tactics said: “He has descended to the shop floor, as they say. The whole purpose of this jazz, including the police escort, is to intimidate the magistrate.”
Reza told magistrate Victor Mpofu that they were ready to go for trial, but Tshuma – representing Malunga, Charles Moyo, Zephaniah Dhlamini and their company Kershelmar, applied for the charges to be quashed.
Malunga, Moyo and Dhlamini are directors of Kershelmar, which owns the 554-hectare Esidakeni Estate in Nyamandlovu which was invaded by Zanu PF secretary for administration Obert Mpofu before the High Court and Supreme Court ordered his eviction.
The government said it had compulsorily acquired the farm for resettlement in December 2020, but the three business partners have challenged the acquisition in the High Court, arguing that the lands minister cannot dispossess black farmers of their land as this breaches section 72 of the constitution.
While the matter is pending at the High Court, police moved to arrest the three men on allegations of unlawful occupation of gazetted state land following a complaint by Lovemore Jiyane and Legina Muchimba, who said they are some of the beneficiaries offered land on the farm by the lands ministry.
Tshuma said Malunga, Dhlamini and Moyo were excepting to the charges.
The lawyer explained: “The last time we appeared in court we were directed to file our application in which application we were seeking a stay of the Magistrate Court proceedings because an identical matter discussing the same issues is being held at the High Court. At the High Court the accused persons have challenged the very gazetting of the farm saying it is not in accordance with section 72 of the constitution.
“The prosecution, in our argument, wants to presuppose or to presume that the High Court is going to rule against us and therefore we should be evicted. We’re saying that should not be done, they should await the outcome of a superior court that is seized with the same question.
“Secondly, we were arguing that the High Court and the Supreme Court have ruled that pending the determination of the matter by the High Court as to whether the gazetting was lawful or unlawful, the accused persons must be in possession of the farm, they must be restored onto the farm. So, proceeding with this matter at the Magistrate Court would be undermining the order of the High Court which has been confirmed by the Supreme Court.
“We made those arguments and the magistrate took the view that, no, these are two separate processes and the prosecution is still free to proceed to have the accused answer to the charges of unlawful occupation despite the fact that there are orders of the High Court and the Supreme Court saying that they must be in occupation.
“We then applied to say we would want to take that decision on review and the position of the magistrate was that we will still proceed with the trial whilst we make that application for review.
“Finally, we then filed an answer to the charge and excepted to the charge on the grounds that in fact it does not disclose an offence. For there to be an offence, the law is quite clear: you must give the occupiers who have remained in occupation three months’ notice and there is no notice that was given and therefore to that extent, the charge does not make the allegation that they were given notice. As a matter of fact, it was never given. We are saying procedurally, they can’t charge the accused for an offence that has not been perfected.
“When we filed our exception, or when we made that application, the state said it was not ready to answer. In fact, it failed to download the law that we had referred to. As a consequence of that, the matter has been referred to us to file our written application, they file an answer to that, we file our heads of argument and then we come back on October 25 to motivate. Whether he (magistrate) wants to give an ex tempore judgement on the day in question, we will see.”
Malunga, now the director of programmes at the Open Society Foundations in Africa, has told the High Court that the farm seizure is punishment for his human rights work as the former executive director of the Open Society Institute for Southern Africa. He previously received warnings from Central Intelligence Organisation deputy director Gatsha Mazithulela to tone down his criticism of President Emmerson Mnangagwa’s regime, he said.